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January 30, 2019

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action


Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action
Randolph v Office of The N.Y. State Comptroller, 2019 NY Slip Op 00167, Appellate Division, Third Department

The petitioner in this action, David L. Randolph, applied for disability retirement benefits. His application was denied by the Comptroller following a hearing. Randolph, acting pro se,* appealed the Comptroller's decision and sent the notice of petition, verified petition and supporting documents by certified mail to Office of the New York State Comptroller, the Office of the Attorney General and the Supreme Court in Albany County.

Randolph, however, failed to "personally deliver these documents to an Assistant Attorney General or to the Attorney General" as required by §307.1 of the Civil Practice Law and Rules.** The Office of the State Comptroller moved to dismiss the proceeding for "lack of personal jurisdiction." Supreme Court granted the motion, and Randolph appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's ruling, explaining "[h]aving failed to obtain an order to show cause authorizing service by mail in lieu of personal service" Randolphused the certified mail method to effectuate service upon the Comptroller." This method, said the court, "requires that the pleadings be sent by certified mail, return receipt requested, to the Comptroller, and that they also be served upon the State of New York by personally delivering them to an Assistant Attorney General or to the Attorney General."

The record indicated that Randolphdid not personally deliver the notice of petition, verified petition, and other documents to an Assistant Attorney General or to the Attorney General. This, said the Appellate Division, is a jurisdictional defect and, in the words of the Appellate Division "Supreme Court properly dismissed the petition, and the merits of the underlying determination are not before us."

* Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf", e.g., acting as one's own attorney.

** §307.2 of the CPLR, addresses "Personal service on a state officer sued solely in an official capacity or state agency" and provides, in pertinent part, "...and by personal service upon the state in the manner provided by subdivision one of this section." §307.1 of the CPLR, Personal service upon the state, provides that such service "shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_00167.htm

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com